Sunday, 6 January 2013

Land Tenure

William the Conqueror, following the battle of Hastings and occupation of the country, declared that he was the rightful heir to the crown and kingdom of England, the true successor of king Edward the Confessor.

More or less immediately following the conquest new principles of Land Tenure were introduced into England, the system of Feudal Tenure In theory the king of England owned all the land of England as his personal possession by right of conquest, as absolute allodial owner, the lord paramount. No other person was to be to hold any land in England with allodial title. All other persons could only own a feudal grant in the land which was transferable as an estate, which derived from the king. This right was the Prerogativa Regis although this term was not used and formalised until the time of Edward I or II.

Much of the land was distributed under the feudal principle of lord and tenant, and subtenant, under several different types of contract with differing rights and duties attached to its possession. William kept a lot of the land under his own personal direct rule and management: the crown lands and royal forests, parcelling a large part of the remainder of the land and distributing it to his followers and those who fought alongside him at the battle of Hastings; they were given as feudal baronies subject to tax and “Knights Service”. Similarly, following his coronation, some Anglo-Saxon lords were allowed to buy their lands from the king.

Sir Frederick Pollock, The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 1. Chapter: BOOK II: THE DOCTRINES OF ENGLISH LAW IN THE EARLY MIDDLE AGES
Accessed from http://oll.libertyfund.org/title/2313/219420 on 2013-01-06

Every acre of English soil and every proprietary right therein have been brought within the compass of a single formula, which may be expressed thus:— Z tenet terram illam de . . . domino Rege. The king himself holds land which is in every sense his own; no one else has any proprietary right in it; but if we leave out of account this royal demesne, then every acre of land is “held of” the king. The person whom we may call its owner, the person who has the right to use and abuse the land, to cultivate it or leave it uncultivated, to keep all others off it, holds the land of the king either immediately or mediately. In the simplest case he holds it immediately of the king; only the king and he have rights in it. But it well may happen that between him and the king there stand other persons; Z holds immediately of Y,who holds of X, who holds of V, who holds . . . of A, who holds of the king.

There were approximately 200 Barons in England at this time, who owned half the land of England as feudal lords or “tenants in chief” to King William himself, and who were answerable to the King alone.

In the feudal system all tenants owed duties to their lord for their land, which was held under a system of homage paid and fealty due and sworn by the tenant to their lord and a further fealty was also owed to the king.

Land Tenure was.

By barony (per baroniam) was the highest degree of tenure. It imposed duties of military service to the king and allowed the right of attendance at parliament or great council when summoned by the king. All such holders were necessarily tenants-in-chief of the king, tenet in capite de domino rege feudum.

By knight-service, a tenure ranking below barony, for military service, of a lesser extent. It could be held directly in capite from the king or as a mesne tenancy from a tenant-in-chief. Such land was called a knight's fief.

Peasants generally owed agricultural service to their lord, in exchange for their tenement of land.

Enfeoffment was, in the feudal system, the deed by which a person was given land in exchange for a pledge of service. A fee or fief was a kind of benefice, in exchange for service.

Subinfeudation was the system by which tenants, holding land under the king or other superior lord, could sublet parts of the their land(s) to another for services and/or for money (rent).

Paravail was the lowest tenant or occupier of the land, the person who actually tilled the fields.

Freehold signified that the rights were hereditable or perpetual, or they were non-free where the tenancy terminated on the death of the death or earlier specified period. The contract defined the title.

"free and common socage", referred to providing service or goods other than those of a military nature. A good example is the provision of a certain amount of food from a tenant's annual crop.

Religious bodies could also hold land from a lord, in exchange for prayers; this was called "frankalmoigne" or "free alms."

A tenant was required to take an oath of "fidelity" to the lord. This solemn ceremony formed the basis for the legal relationship between the lord and the tenant.

The lord was entitled to emergency taxes when for example, he was kidnapped, to pay the ransom. The lord was allowed to insist from a tenant's eldest son, as heir of the tenure, on a special estate tax called "relief" to effect the transfer of responsibilities. If the tenant died with an infant son as heir, the land went into wardship. If the heir was female, the lord could veto the marriage of the woman.

The position of vassal or tenant was designated by dominium utile, as opposed to dominium directum; the latter term standing for the normal cases of dominium in Roman law, essentially the position of the being the feudal lord. In other words the Lord retains the ultimate directing control over the real property.

Some important rules of feudal law relating to the rights and obligations of lords and tenants can be found in the 1215 Magna Carta.

The Language of Land Tenure

Allodial, Escheat, Seisin, Disseisin

Seisin is the legal possession of a fiefdom, an estate in land. In the legal sense of putting one in possession of, or taking possession of, hence, to grasping, or seizing the land.

Disseisin is where a tenant has become disseised, or dispossessed of his land.

Escheatment was the principle which allowed tenanted land to revert back to the lord. There were two causes for land being escheated. The first was the death without heirs of the tenant. The second was the conviction of the tenant of a felony. The loss of one's land, not only for oneself but also for one's heirs, led to a cruel and unusual punishment called peine forte et dure. A person pleading guilty to a felony lost his land to his lord. But if he died without a plea, the next of kin remained eligible to claim the property by paying relief to the lord as long as they could prove their claim.

"But further, Domesday Book is no register of title, no register of all those rights and facts which constitute the system of land-holdership. One great purpose seems to mould both its form and its substance; it is a geld-book."

Benjamin Thorpe (1840). "Laws of King William the Conqueror". Ancient Laws and Institutes of England: Comprising Laws Enacted Under the Anglo-Saxon Kings from Aethelbirht to Cnut, with an English Translation of the Saxon; The Laws Called Edward the Confessor's; The Laws of William the Conqueror, and Those Ascribed to Henry the First; Also, Monumenta Eccles. The Lawbook Exchange, Ltd.. pp. 201–. ISBN978-1-58477-264-4.

Sir William Blackstone; John Anthon (1832). "Of The Feudal System". An Analytical Abridgment of the Commentaries of Sir William Blackstone on the Laws of England: In Four Books, Together with an Analytical Synopsis of Each Book, to which is Prefixed an Essay on the Study of Law. P.H. Nicklin and T. Johnson. pp. 133–.